Collard v Brisbane City Council [2010] QPEC 39 [2010] QPELR 635

1-1 [2010] QPEC 39 PLANNING AND ENVIRONMENT COURT JUDGE ROBIN QC P & E Application No 778 of 2010 CHRIS JOHN COLLARD Applicant and BRISBANE CITY COUNCIL Respondent and NGA KIM VU Co-Respondent by election BRISBANE ..DATE 29/04/2010 ..ORDER AND REASONS CATCHWORDS Sustainable Planning Act 2009 s 367, s 369, s 374 Application to change development approval constituted by a court order which envisaged a maximum height above natural ground level of 9.5 metres - sloping site where a stepped roof was envisaged in original plans - applicant's private certifier and draftsperson produced plans used in construction incorporating a flat roof with exceedences along the eastern wall from 0.2 metre to 0.5 metre - Council (and the more affected downhill neighbours) supportive of applicant who was considered blameless - whether "permissibile change" - court required to consider putative submissions - uphill neighbour already a submitter, who filed affidavit material in opposition to the application but decided not to participate in the hearing -- 1 of 10 -- 1-2 ORDER HIS HONOUR: The Court will order that the Development Approval for the subject premises constituted by its order of the 10th July 2009 in BD 1487 of 2009 be changed to permit development in accordance with those plans from Exhibit CJC01 to the applicant's affidavit filed on the 12th of March 2010, copies of which are annexed to this order, to the intent that on the eastern side of the building a height above natural ground level of 9.71 metres is permitted in the south and at the northern end, a height of 10 metres. ... HIS HONOUR: The applicant, Mr Collard, has been self-represented throughout this saga, in which he is attempting, with his partner, to acquire a new home in Denman Street, Greenslopes. The property was acquired with plans for a residence. The approval which had been obtained was successfully challenged in an appeal brought by Nga Vu. Before Mr Collard became involved, he discovered that the blunt instrument of reducing heights in the way that was done in Miss Vu's appeal committed him to a building which was not going to be suitable. In Collard v. Brisbane City Council [2009] QPEC 62; [2010] QPELR 6, he succeeded in depriving Miss Vu of the advantage which she had gained in the compromise of her appeal. Effectively, what the Council had approved was reinstated. Her concern is based on the height of the structure which, coupled with other considerations such as the size and dimensions of the site, rendered the relevant development application impact assessable. -- 2 of 10 -- 1-3 ORDER Unfortunately, the plans which were available at that stage were not suitable to permit construction. Things have gone wrong in the process of attending to that deficiency. As the story was presented to the Court, that's not Mr Collard's doing but a consequence of deficiency in the combined performance of the private certifier and the draftsperson he engaged. The land falls away steeply from Denman Street. The original proposal for a stepped roof, which would follow the contours of the site, got lost. The consequence is that, as constructed - and the Court is told construction has occurred essentially in accordance with the final plans - the flat continuous roof, which has a slope away from the street, exceeds the benchmark set in the Court's approval of 9.5 metres above natural ground level. That's the case at the southern end of the eastern side of the building to the extent of .21 metre and at the northern end that each side to the extent of half a metre. Ms Vu, concerned about what she observed occurring, engaged surveyors, whose work has confirmed the exceedences mentioned above. It does Mr Collard no credit that he exhibited the hostility he did to the surveyor when the latter was in the course of carrying out his commission, which, it seems to me, was for a reasonable purpose. In justification, Mr Collard describes his frustration at the unsatisfactory course of discussions he was having with the Vus, who are his uphill neighbours. -- 3 of 10 -- 1-4 ORDER Ms Vu became a party in this proceeding, the purpose of which is to regularise the construction and to respond to an enforcement notice, which the Council, very likely acting on complaint from the Vus, issued, dated the 6th of January 2010. That notice ordered that further construction, which was plainly well advanced already, cease. By appealing to this Court, in another proceeding Mr Collard obtained a stay of the enforcement notice and took advantage of that to get construction effectively completed. He accepts that he took that step at his own risk. Although protesting that non-compliance with the development conditions set by the Court is attributable to mistakes of others, Mr Collard accepts that he's gained some advantage from that mistake in the availability of the additional space in the roof to house air-conditioning and the like. As I understand things, what's inside the dwelling for the family's comfort doesn't change. There may have been savings in the cost of construction from a simpler roof. The Court proceeds on the basis that Mr Collard is innocent in relevant respects. The Court is as reluctant as anyone in the community would be to require the demolition of constructed works which, to an extent, exceed what is authorised under the law. Necessarily there's a waste of trouble, resources and money. Nonetheless there are circumstances where demolition has been ordered. See Brisbane City Council v Wang [2009] QPELR 144 and cases -- 4 of 10 -- 1-5 ORDER cited there. It's something that, in my observation, the Council is loath to seek. The Court's had the advantage of some comments from Mr Adams, a principal urban planner with the Council, over and above what he says in his affidavit. I apologise for putting him in the embarrassing position of being invited to say what difference it would make to the assessment of a new development application of the kind referred to in section 374(1)(b) of the Sustainable Planning Act 2010 if Mr Collard were compelled to make a new development application which would necessarily be a costly impact-assessable one. Mr Adams I took to suggest that an officer undertaking the assessment would be concerned about the integrity of the planning arrangements and the impacts on neighbours but would have in the back of his or her mind that the development had already been done and the aspect of avoiding waste. He certainly accepted as a realistic possibility that the further application contemplated not might be approved. That would leave for the long term an unfortunate situation in which the lawfulness of improvements on the site was under a cloud. It would bode to cause confusion and uncertainty whenever the property changed hands or was offered for sale and perpetuate a risk of challenges, even proceedings, brought by neighbours. -- 5 of 10 -- 1-6 ORDER It seems to me there is a public interest in reaching some sort of finality so that the lawfulness of existing improvements or the unlawfulness of them is clearly established one way or the other once an entity like the Court is faced with the issue. What Mr Collard is about is establishing a situation in which the cloud I referred to can be removed. Mr Lyons appeared for the Council today. Its attitude is supportive of Mr Collard – which may have implications for the fate of a new development application by him, should he fail here. Mr Lyons referred the Court to various provisions of the Act, including section 374(1)(b) and section 367(1)(c) over and above the sections mentioned in the outline of submissions he was given leave to read and file. Regarding section 367(1)(c), which is reflected also in section 374(1)(c), in the original application there was a submission from the Vus, reproduced in Mr Adams’ affidavit, so their attitude was made known. The original planning report foreshadowed or envisaged a structure rising to 11 metres above natural ground level. -- 6 of 10 -- 1-7 ORDER That concerned the Vus, who have the uphill property at the corner of Denman Street and Peach Street. They objected to the impact on their generous existing views. The Court contemplates putative submitters acting reasonably. Cf. Blazen Pty ltd v Brisbane City Council [2010] QPEC 28. It can't be said that when the Vus made their original submission, which may have borne some fruit, they weren't acting reasonably. As it happens, that submission covers the present situation, and I have taken it with account, as the Council formerly did. There's an affidavit on file from Ms Vu, which I read in preparation for today's hearing, which she chose not to attend. It's clear that her objection to the restriction of her view and outlook continued. What is threatened by today's proceeding is the Court's endorsement of the loss of what would be no more than a tiny sliver of outlook by the inclusion in the Vus' view of a sight of part of the flat roof, should their gaze be directed downwards, rather than to the horizon. The wall of the Collard house on their side remains at the approved height. Nothing that might happen pursuant to the Council's enforcement notice, issued under section 590 of the Act, would produce any appreciable advantage to them, in my assessment. There is the further consideration that, having taken an active part in this proceeding, to protect her rights as she saw them, Ms Vu then chose to withdraw, even before provision -- 7 of 10 -- 1-8 ORDER of recent email communications to the court printed out as Exhibit 1. If I recall correctly she may even have told me on a mention of the matter on 24 March 2010 that she didn't wish to play any further part. The Court ought to take a commonsense, practical approach to these things. The withdrawal of Ms Vu, already a submitter, who was the only potential one under section 367(1)(c), may I think be taken as at today's date as an indication that she is a person unlikely to make a properly made submission. Exhibit 1 in terms indicates that she is no longer looking to the Court to protect her interests. Notwithstanding that, regard has been had to her affidavit and the exhibits. Thus far I haven't mentioned the other requirements of a “permissible change”, as defined in section 367 for purposes of an application like the present one, under section 369. There's no real difficulty for Mr Collard. The change he seeks to the development approval does not result in a substantially different development or trigger involvement of additional concurrence agencies or the like. The development application was impact-assessable all along. It doesn't include any prohibited development. I'm grateful to Mr Lyons for assisting the Court (in circumstances where Mr Collard could not be expected to have the experience to do so) by reference to other considerations such as the guidelines as to what may be a “substantially -- 8 of 10 -- 1-9 ORDER different development” which the Minister has promulgated under section 759 of the Act. As the Court held in Heritage Properties Pty Ltd v. Redland City Council [2010] QPEC 19, while it may be useful for the Court to refer to guidelines in matters such as the present, they ought not be regarded as covering the field. As it happens, there's nothing particularly relevant in them for today’s purposes. The Court's obligation as the entity making the decision to notify it appears in sections 375 and 376 of the Act. I agree with Mr Lyons that communication of the Court's order would constitute compliance with the Court's obligation as responsible entity approached under section 369. Differences between neighbours are regrettable but perhaps to be expected where people's outlook, amenity and views are in issue. One significant consideration here is that the downhill owner is agreeable to what Mr Collard wishes to achieve or preserve. It's the downhill owner, as Mr Adams said, who suffers the main impact of the excessive height of the roof line on the eastern side of Mr Collard's house. Given the fall in terrain in that part of Greenslopes and the dominating nature of the Vu residence on the highest site in the west, what exists as established by the photographs, for the moment, is a visually-acceptable, even pleasing fall in roof lines. The future will show whether that will survive the development now threatened on the downhill site according to Mr Collard. Across Denman Street are the relatively mammoth structures of the Greenslopes Hospital. -- 9 of 10 -- 1-10 ORDER Ms Vu sought to devalue the concession made by the lady who – is the next door, downhill neighbour, Bridget Evans, in light of information that she appeared to have her property on the market. As things stand, she was the owner at the relevant times and the person to express an attitude in respect of the neighbouring site on the east, which is the one most affected. ------ -- 10 of 10 --